Respecting copyright of old photographs – the good, the bad, and the ugly

I regard myself as ‘custodian’ of my collection of vintage photographs – after all I didn’t actually create the images – and the joy of sharing them online is to see the comments and to find the images (or most often simply links to them) on the likes of Twitter, Facebook, Wikipedia etc. I release almost all of my vintage images under a Creative Commons Attribution, Non-Commercial licence. This means that as long as any use is non-commercial and credits the source of an image (typically with a link to the original) then that’s fine with me. The result of this approach is that I see lots of people viewing them on Flickr (just over a million views to-date), with many coming from such sources. Assuming the people that actually click through are just the tip of the iceberg then it confirms that lots of people are enjoying the images. I like that thought.

Yes, on occasion they will be exploited and that is not right, but the only real alternative is to never share them at all and I couldn’t bear just hiding all the images in a cupboard or on a hard drive never to be seen. It’s also of note that I have certainly made more income (albeit trivial sums) by sharing them under an appropriate license and then people contacting me to ask, than if I had never put them out there at all.

There will always be thieves, but as any corner shop shows that’s no reason to put the tastiest chocolate bars out of reach where people can’t easily grab them.

Anyway, I have seen three things lately that have made me think of the issues around sharing old photographs online, and the ways that people might use, and abuse, those images.

The Good

Unknown sailing ship, used properly under license

A couple of days ago I started seeing a number of people coming through to an image I have of a sailing ship. They were coming from this page. At first I couldn’t quite work out why, but then saw that all the sources that made up the composite are listed and linked, and the sailing ship shown to the back right was taken from my image. So the artist has taken a range of images that were available under a suitable license, applied their own creative skill, and then when they published their work they have linked to the source images. Perfect. (Though ironically there’s no copyright information on their image so I don’t know if I’m allowed to share it here!).

The Bad

Hari Dasu, India. c. 1900?

I’ve long been aware that some of my most popular and notable images on Flickr had found themselves being quite widely reproduced across the web. Not in itself a specific problem, but as you might imagine not everyone was respecting the license, especially the attribution part.

I’m not sure whether it’s a good or bad thing that there are now a few tools to help you find these things. The two most notable ones that I have used are TinEye and Google‘s image search feature (click on the camera) that both let you drag and drop an image into the search, or paste in an image url (web address). TinEye now allows you to just paste in the address of a Flickr page and as long as you have a little bit of patience it can return some interesting results (though it seems to find far, far less than Google). If you want to try them, here’s an interesting url to try – http://farm4.staticflickr.com/3247/2995161357_126ebc4607_o_d.jpg – almost certainly my most plagiarised image.

The Ugly

I have to confess that even in the above examples, almost all of them are non-commercial and not exploiting my images as such, and generally I suspect any issues with lack of attribution are based on poor awareness amongst authors. Likewise there have also been some concerns raised about services like Pinterest, but in most cases that I’ve seen the source has been credited (though annoyingly if someone ‘pins’ an image from a site which does give proper attribution, it still cites that secondary site as the source). The bigger issue is how easy it is to ‘Pin’ images that are marked as all rights reserved, something that generally doesn’t apply to my images.

But one example has just come to light that exemplifies how little regard some companies have for copyright and attribution, even when they should know better. As I said on Twitter “If someone fails to credit an image source that’s one thing, but when sites like @imgur don’t even let people do it, that’s out of order“.

The site in question is imgur.com, which I found when my cousin posted a linkon Facebook to a gallery of interesting historic images. I find so many things wrong with this site, things that collectively amount to the worst case I’ve ever seen in terms of lack of respect for the rights holders of historic images:

none of the images are attributed

even if the images were used under license there’s no way for users to acknowledge that

you can’t see who uploaded the image, let alone contact them

you can’t comment on these images

they provide code for anyone to embed the gallery elsewhere, which in turn has links to view and download the original resolution images

anyone can download the original files for the entire gallery in a zip file in one easy click (it even emails you to tell you when the download is ready)

Yes, if whoever uploaded these images took more care and ensured that they didn’t upload images that they weren’t permitted to then there wouldn’t be a problem. But the truth is that even if, like with my images, they did have a suitable license the site simply makes it impossible to honour the requirements of proper attribution.

As a slight side story, I was intrigued by whether any of those images were definitely protected by copyright. I took the example of the haunting image of Vietnamese monk Thich Quang Duc – http://imgur.com/a/vnwC2#CHjdf. The original image was taken in 1963 by Associated Press photographer Malcolm Browne, who coincidentally died just a few weeks ago. The image is currently listed on the AP website and is clearly still in copyright. There’s an extra twist though. The image displayed on Imgur is colour, whereas the original was black & white. This version it turns out was created by Swedish artist Sanna Dullaway who has taken a whole series of classic black & white images and created colour versions. I wonder what permissions she got to use these original images? On the other hand, that doesn’t take away from the fact that these images will be her copyright. That’s one for the lawyers I suspect!

And talking of lawyers, what of digitised versions of images that are definitely out of copyright? The considered opinion (thanks to @copyrightgirl on Twitter for bringing me up to speed on this) is that for a copy of an old image to have its own copyright protection it will depend on how much “originality, skill and judgment goes into the digitisation process”. This has been established in the US by the Bridgeman case, but is totally untested in UK law. So, whilst I like to think I have put a certain amount of skill and judgement into the digital versions of my images, maybe I don’t have any rights with them anyway? But doesn’t it all just boil down to plain old common decency in the end?

Very nicely put. I was very reluctant to start watermarking images on my blog until I saw how they were being used. Entire blog posts (text and images) were reposted without any attribution. People also sell images and use them to sell other products. Then again, there are people who use these pictures for creative purposes, and I want them to have as much material as possible.
It’s really too bad about that gallery of interesting historic images, because when the information is separated from the image, the curious viewer is left without the necessary clues to research the history.
Thanks very much for this post.

The part about losing that vital provenance and history especially resonates with me. When that is lost the images become purely aesthetic items, when to me their true value lies in the stories they tell (and the stories that lie waiting to be discovered).

Thanks for the great post – the story behind the Thich Quang Duc image was particularly interesting!

I’m wondering though whether it would be more appropriate to title this article as respecting ‘context’ rather than specifically ‘copyright’ as, as far as I can see, many old photos would be out-of-copyright or (and maybe this is particularly the case with mystery images!) be an orphan work (I think this is the correct term for something where copyright ownership is not known).

My slight issue with using the term ‘copyright’ is for cases where the original uploader of the photo (i.e. the collector) is not the copyright owner or (and I’m thinking here of museums) where the photo/image is of an an artwork or object in the public domain but where the right to licence their image of that object is a bit questionable (I’m happy to learn more if it isn’t a grey area though!).

PS, I’ve only only just come across your site while looking for Ealing-related photos on History Pin (a bit more context for you ;- ) Keep up the great work!

Here’s a little anecdotal story that relates to this, based on something that happened yesterday. I was looking at my Flickr stats and saw that one image – http://www.flickr.com/photos/whatsthatpicture/5688040955/ – suddenly had a good number of referrers from Tumblr. The fact that I had seen this as a referrer to the original image on Flickr confirms that this was posted on Tumblr fully in accordance with the Creative Commons attribution license. But above and beyond that, when the person had posted it they had added a title and attributed it to the photographer Albert Monier, and dated it to 1953. This was information that I didn’t know, so was a real benefit. Of course I would never have known all that if the license requirements had been ignored.

Can anyone clarify the position. I understand the situation to be the copyright is the intellectual property of the original photographer and ends on their death or 75 years whichever is shortest. Is this the case?

Thanks for the post. I’m doing research to create a video that would accompany an original composition and recording on a historic aviation subject. I’m finding it very difficult to discern what the provenance or copyright status is of the still images (or video clips) of the subject matter found online. The stills would (originally) date to the early 1930’s to late 1940’s (65 to 80 years ago). I would like to make sure I’m respecting copyright (assuming its legitimate), securing permission or license if need be, yet I see many images recurring without attribution. Its a bit of a needle in haystack job to track down each image’s true copyright status. My search for guidance took me to your post.

An interesting article and it prompts me to ask a related question someone here might be able to answer. Do old photographs carry the same copyright term as texts (ie 70 years after the death of the photographer/author)? I’m interested in composing a work with text based on a series of 19th century photographs and haven’t found clear guidance on this issue as yet. Of course the source of the image or negative would have to be credited etc, but this is not the same thing I think as clearing copyright to reproduce (commercially or otherwise). Any advice or direction will be much appreciated.

I agree with some of your comments, but surely there has to be a cut off point. I recently found some photos of London streets taken in the mid 19th century – 150 odd years ago. The website claimed copyright – but that is quite disgusting when such images are part of a common history we all share. I would have no hesitation in crediting the photographer if he were known, but not someone who has merely found the photos and stuck them on a website. If that is the case then it’s just pot luck who finds some old photo and then makes claims on it. That is never what copyright was for, it was for protecting originators of original work, not for future generations to get proprietorial over things that, once out of copyright, belong to us all

Prompted by Nick’s latest comment, I see I have a few other comments and questions to respond to, so I’ll do my best to summarise my thoughts.

It is so clear that the specifics of copyright is just one part of all this. Whilst it’s a complex subject, ruled by different laws, time periods, and interpretations, clearly no-one should be doing anything to breach copyright. But common sense must prevail, and I sense it is tending that way. For example the whole area of orphaned works (http://en.wikipedia.org/wiki/Orphan_works) and making best effort to trace copyright holders is, as far as I am aware, being seen as enough to allow use. Thankfully in my case, due to the passage of time very little of the original material I own and share would actually be under copyright, although I can think of one very large collection of advertising negatives from the 1960s and 70s that I have not yet shared due to that very reason, so I can’t ignore it completely!

My focus here though is on whether anyone can claim any rights simply because they own and have shared an item, irrespective of the age of the original, which relates to Nick’s point above.

There can be a specific legal argument applied that says the creator of the derivative work has put in enough of their own creative input to claim their own copyright on that piece. I do not believe that photographing or scanning an image and presenting that ‘as is’ should qualify. The sorts of things that would, again in my opinion, would be digital restoration, colouring, making collages from multiple images, etc. But I am unaware of any cases where this has been tested, and am certainly no legal expert.

What we are then left with is the majority of items we see online – straight scans of images from personal and public collections. Here I feel there are two inter-connected threads to the argument for applying some terms of use, even those are in the form of a request rather than enforceable by law.

The first argument is that it is common courtesy, and indeed useful, to say where something has come from. There’s also the specific case where the original owner may provide free access but then someone takes that and slaps their own claim on it. Beyond this, always knowing the original source of an image maintains the connections between surrogates so that if any interesting information can be fed back. Take a look at my Tumblr story above.

The second argument is one of incentive. I presume what must be everyone’s desire in this whole area is to share these pieces in order to engage with audiences and build knowledge. There are countless examples where people have learnt new things through the items they see, but also contributed by sharing their own personal knowledge about any item (such as a location or date). But doing this sharing comes at a cost, whether it’s a private individual having to invest in equipment, learn new skills, and spend endless hours in front of a computer, or a major organisation spending thousands on digitisation equipment and skilled staff to operate it, plus then the IT infrastructure to securely store it and share it. And don’t forget that often the items will have been purchased and space, equipment and skill used to conserve and store it. I still feel even that isn’t enough to justify preventing someone from using an image, and who would wish to, but having suitable recognition for the source of the image simply makes it feel all the more worthwhile for having put the effort into acquiring the original item, creating a digital version, and sharing it online. The reward, at bot a personal and institutional level, is not just knowing ‘that came from me’, but that ‘everyone knows that came from me’.

There’s actually a third argument, but one I argue against rather than for. That is preventing commercial re-use. This is where it potentially gets even more complicated, and certainly emotive, but it does need to be addressed. Trying to prevent commercial re-use is in my view rather futile and self-destructive. If anyone, whether a private or public owner, feels they can make significant money from an image then don’t share it, or if you do share it then do so in a form that can’t be used (i.e. low-res, but no watermarks please, they’re just wrong!). But do this on a case-by-case basis, not a blanket ‘just in case’ approach across a whole collection. Can anyone show me an example of an organisation that has benefited by deliberately not sharing images and allowing them to be re-used? On the other hand look at somewhere like Flickr Commons or the RijksMuseum, which has released all of its images and in doing so gained publicity and audiences that would be hard to measure the value of.

And one more thing I wanted to specifically address from Nick’s comment

“I would have no hesitation in crediting the photographer if he were known, but not someone who has merely found the photos and stuck them on a website. If that is the case then it’s just pot luck who finds some old photo and then makes claims on it.”

This make it sound like it’s just a bunch of people grabbing the first thing they see and shoving a distorted shaky photograph on Instagram. But what about someone who has spent years understanding a subject, has developed a keen instinct for tracking down specific images, and has the ability (and time) to rummage through a box of endless photographs to find one gem that is of particular historical interest? They pay a reasonable amount of money for it. They then scan it using expensive equipment to a high quality based on skills that they have learnt, and share it at high resolution because there are details in the image that they know it will be valuable for people to see. Is it then fair that a commercial company comes along and grabs that image, stick it on their website with no attribution, and sells prints of it?